As BART strike looms, experts see hope as sides get closer

After six months of nasty negotiations, a crippling rail shutdown and two more threatened strikes, BART and its unions are facing another strike deadline this week. But a panel of mediators enlisted by this newspaper is optimistic that the two sides will finally settle this time.

Perhaps the brightest sign came last week when both sides began trading proposals back and forth for the first time during the 60-day cooling-off period and met more often, closing the gap between the competing offers from $112 million to $89 million over four years.

Those initial steps -- a far cry from the stonewalling strategy used all summer to try to break the other side -- are typically the start of something bigger, the experts said.

"The dynamic is that one side starts to move, and that encourages the other side to move. Movement begets movement in labor negotiations," said Oakland-based Paul Roose, the state's former top mediator who oversaw BART negotiations in 2009.

The graduate students in Arlene Kostant's negotiations class at Hastings College of the Law took on the dispute as a special project and concluded that the biggest problem was that each side was focusing on demonizing the other, a strategy that rarely proves successful. The students suggested "hitting the reset button" to switch from enemies to partners trying to solve a common problem.

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Each side seems to be tiptoeing in that direction. After months of blasting the unions, BART on Friday called the labor groups' recent movement "a really big deal," prompting the agency to budge slightly for the first time in two months and back away from threats that supervisors would operate trains to provide limited train service during a strike. And unlike during the summer, the unions representing 2,300 line-level workers have held off on high-profile rallies bashing BART management.

"I think the key here is much more respect," Kostant said.

During the summer, "it seemed like so much of what we were reading was a list of what not to do," she said. "They were all blaming each other, and neither side was taking any responsibility for where they are today."

Sausalito-based Dana Curtis, who has been mediating disputes for 23 years for courts and private parties, points to often-cited research among psychologists about the four common ways people approach disagreements: Give up and let the other side win, collaborate on a common solution, compromise or compete.

She said it's clear that BART and its unions spent the summer fighting, a tactic that almost inevitably leads to failure for any dispute, whether over a labor contract, a budget fight in Congress or between couples bickering over which new restaurant to try.

BART riders wait for their train at the Coliseum BART station in Oakland. (Laura A. Oda/Bay Area News Group)

Since caving and working in harmony seem out of the question in the BART talks, both Kostant and Curtis see compromise as the only solution.

That looks like it's starting to take place. On the biggest issue -- wage increases -- the opposing sides were offering raises of 10 percent over four years vs. 21.5 percent over three years when the cooling-off period ordered by Gov. Jerry Brown began in August. But in recent days unions moved closer to 15 percent, while management bumped up its offer an undisclosed amount. That reciprocation -- you have to give something to get something -- is new to the BART talks and is one of the basic principles of successful negotiations, Kostant said.

While the remaining gap is still large, both sides are facing more pressure now than during previous deadlines to reach a deal.

"At this point, I think that taking a great hard look at the real cost" of a strike, Curtis said, "may actually force both sides to compromise."

Past strikes by BART, UPS and other workers around the nation have sparked public outcry and spurred managers to capitulate. But as the latest dispute has worn on, Bay Area polls have shown more and more people turning on the BART workers, who already make the highest wages of any transit workers in the state -- an average gross pay of $76,500. A poll released last week by pro-business groups found that just 6 percent of respondents thought management should take the unions' offer.

"The union has to make a very critical decision: If they go out on strike, will the public support them?" said Norman Brand, a San Francisco mediator who has worked on 3,000 labor disputes. "That's what's going to decide it."

Brand also noted that unlike most labor disputes, the managers -- the BART board -- are publicly elected officials. A strike now would hit BART at a time when rider counts are up 30 percent compared to the summer, and when freeway traffic peaks.

If both sides start approaching what BART board president Tom Radulovich calls the "settlement zone," Brand and Curtis both said, it will come down to negotiators securing enough "face savers" to seal a deal that will inevitably disappoint some workers and taxpayers.

Even if time runs short to put those finishing touches on a deal, union leaders have indicated a willingness to extend talks and possibly keep working beyond Thursday night's deadline if an agreement is close, as they did when a strike deadline came and went in 2009.

"There can be some redemption here if people come together," Curtis said. "They will compromise -- they need to look really hard at what this costs them for the strike."